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Funk v. Shearer

Supreme Court of Montana

February 28, 2017

KEVIN FUNK, Petitioner,
v.
CAPTAIN JOEL SHEARER, Respondent.

          ORDER

         Kevin Funk (Kevin) petitions this Court for a writ of habeas corpus alleging illegal incarceration with excessive bail since June 26, 2016, in the Lake County Jail. He requests his immediate release with "NO PROBATION" and "ZERO SUM BOND." We amend the caption to correct the spelling of the Captain's last name.

         Kevin does not provide the basis for his current detention. Kevin references his cause number in the Lake County District Court, but he does not provide any substance to his allegations. Available electronic records indicate that the State charged Kevin with one count of felony criminal mischief and two counts of misdemeanor criminal trespass on May 31, 2016. The District Court originally scheduled his sentencing for February 15, 2017, which was continued one week. Kevin has since received a five-year commitment, with no time suspended, to the Department of Corrections for the felony.

         Upon review of the petition, Kevin is not entitled to immediate relief. Kevin uses the petition to challenge his divorce decree and this Court's subsequent rulings. Citing to federal law and cases, he explains that the 2.5 acre lakefront property was acquired in trust and claims that this federal land patent should not have been included in his divorce. He also resurrects claims about the parenting plan, contact with his child, and the transfer of funds. He asserts that his due process rights have been violated because he was not given notice of this property's sale.

         This Court is familiar with Kevin's claims through his prior appeals of his dissolution proceedings. In 2011, through counsel, Kevin argued that the District Court erred in awarding his spouse a portion of his inherited property upon dissolution of marriage. In re Marriage of Funk (Funk I), No. DA 11-0209, 2012 MT 14, ¶ 2, 363 Mont. 352, 270 P.3d 39. By way of background, Kevin and Bernita June Funk (June) were married in 1990. Funk I, ¶ 3. "In 1996, Kevin's father died and Kevin inherited over 115 acres of real property, 2.5 acres of which is lakefront property on Flathead Lake." Funk I, ¶ 3. June filed for divorce in 2009. Funk I, ¶ 3. "[T]he focus of this appeal [was] the District Court's distribution of the property Kevin inherited or acquired with inherited funds." Funk I, ¶ 3.

         This Court, after clarifying § 40-4-202, MCA, and the relevant case law, affirmed in part the court's decision as to the "award of the 2005 Toyota Sienna to June and its valuation of Kevin's lakefront property." Funk I, ¶ 34. We stated that "the District Court must refer to the factors enumerated in [this statute] in its findings and conclusions relative to the inherited property." Funk I, ¶ 24. We remanded the matter to the District Court.

         Appearing as a self-represented litigant, Kevin appealed the District Court's decision following our remand. In re Marriage of Funk, No. DA 13-0023, 2013 MT 180N, ¶¶ 2, 6, 2013 Mont. LEXIS 232 (Funk II). In our decision, we noted that June cited to law-of-the-case principles which barred Kevin from litigating these issues again. Funk II, ¶ 6. This Court concluded that the court complied with the remand instructions and that "Kevin has failed to demonstrate any error or abuse of discretion in the District Court's Post Remand Amendment to the Findings of Fact, Conclusions of Law and Order of Decree of Dissolution." Funk II, ¶ 6. We, therefore, affirmed the District Court.

         Kevin is attempting to litigate an issue which this Court has already decided. He challenges the court's division of this property which we determined was appropriate and required under § 40-4-202, MCA. Funk I, ¶ 34 and Funk II, ¶ 5. The trust to which Kevin refers terminated upon his father's death in 1996. Section 72-33-411, MCA (1995). At this point, the trust does not exist nor does Kevin's interest in this land subsequent to the sale. The doctrine of law of the case is "based on judicial policy favoring a definite end to n litigation." Federated Mut. Ins. Co. v. Anderson, 1999 MT 288, ¶ 58, 297 Mont. 33, 991 P.2d 915. Furthermore, he brings these challenges in a petition for habeas corpus relief which cannot stand.

         "Habeas corpus is available to challenge the sufficiency of the legal cause for incarceration." Sage v. Gamble, 279 Mont. 459, 463, 929 P.2d 822, 824 (1996); § 46-22-101(1), MCA. Kevin bears the burden of demonstrating sufficient legal cause to persuade us to grant the writ of habeas corpus. Miller v. Eleventh Jud. Dist. Ct., 2007 MT 58, ¶ 14, 336 Mont. 207, 154 P.3d 1186. Kevin has not met his burden. The reason for his current detention is based upon his 2016 criminal offenses upon this lake front property. He presently is represented by counsel. The process due an individual varies according to the factual circumstances and nature of the right at stake. Sage, 279 Mont, at 464-65, 929 P.2d at 825. Kevin has failed to establish that he has not been afforded due process in his underlying criminal proceeding or that he has been deprived of statutory or constitutional rights. Accordingly, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED.

         The Clerk of Court is directed to provide a copy of this Order to counsel of ...


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